Volledige transcriptie van Seventh Circuit Roundup: Title IX, TCPA Texts and Forum Non Conveniens

00:05:13.600 Congress we we cited that a lot in our in our SGU days. 00:05:13.839 --> 00:05:14.079 Exactly. 00:05:14.160 --> 00:05:15.519 So yes, we that's right, Laura. 00:05:15.600 --> 00:05:17.360 We we invoke Pennhurst all the time. 00:05:17.439 --> 00:05:20.720 And this is important, this is important to what we will get to in the on Bonc decision. 00:05:20.959 --> 00:05:23.360 Davis itself invokes Penhurst. 00:05:23.439 --> 00:05:24.399 So this is not novel. 00:05:24.720 --> 00:05:30.000 Penhurst is an old decision, and the court invokes Penhurst in answering this question. 00:05:30.319 --> 00:05:37.680 So the school in Davis said, Well, under Penhurst, Congress has to speak with a clear voice. 00:05:37.920 --> 00:05:50.399 There's nothing in Title IX that makes it crystal clear that a school might be subject to a damages lawsuit because of sexual harassment committed not by the school's employees, but by another student. 00:05:50.560 --> 00:05:52.879 That that's not that's not clear from the statute. 00:05:53.199 --> 00:05:55.920 Uh Justice O'Connor says, Well, no, I see what you're saying. 00:05:56.079 --> 00:05:58.959 I agree that uh Penhurst applies here. 00:05:59.199 --> 00:06:10.879 It limits the availability of private damages actions, but I think there is a mechanism in some situations where private damage private damages actions are cognizable. 00:06:10.959 --> 00:06:18.480 And she says, first, the key part is Title IX requires an intentional violation. 00:06:18.639 --> 00:06:24.079 So you can only be held viable for damages uh in a private action if you intentionally violated Title IX. 00:06:24.480 --> 00:06:29.839 And the by intent, Justice O'Connor explains, we mean deliberate indifference. 00:06:29.920 --> 00:06:32.480 And we'll get to deliberate indifference to what later. 00:06:32.560 --> 00:06:35.600 But that that's she says deliberate indifference, that's the that's the mental state. 00:06:35.759 --> 00:06:43.439 So deliberate indifference to known acts of harassment amount to an intentional violation of Title IX capable of supporting a private damages action. 00:06:43.680 --> 00:06:52.240 And they have the court had previously held that's true when the harasser is a teacher, and then in Davis, Justice O'Connor says, and that's also true when the harasser is a student. 00:06:52.319 --> 00:07:02.800 So that's the first move that you can have a private damages action when if the school is deliberately indifferent to harassment committed by a fellow student. 00:07:03.279 --> 00:07:05.120 But it's not that simple. 00:07:05.439 --> 00:07:07.040 Not that simple, Justice O'Connor says. 00:07:07.519 --> 00:07:17.519 First of all, the statute says the school is violates Title IX if it subjects a student to discrimination. 00:07:18.000 --> 00:07:23.279 And and the idea is discrimination equals, well, does it equal sexual harassment? 00:07:23.439 --> 00:07:24.000 Not so clear. 00:07:24.319 --> 00:07:34.480 Justice O'Connor says, well,

even if a funding recipient doesn't engage in harassment directly, it may not be liable for damages unless its deliberate indifference subjects its students to harassment. 00:07:34.720 --> 00:07:41.600 That is, the deliberate indifference must, at a minimum, cause students to undergo harassment or make them vulnerable to it. 00:07:41.839 --> 00:07:57.360 And so she says, that means we are going to limit, quote, a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. 00:07:57.600 --> 00:08:02.240 So, for example, in this case, the harassment occurred at school on school grounds. 00:08:02.319 --> 00:08:04.399 It's an elementary school, that's important context. 00:08:04.639 --> 00:08:16.560 And so, Justice O'Connor's leaving open the possibility well, in a university context, what about situations where the rat harassment occurs off school grounds in a context that the school doesn't directly control? 00:08:16.720 --> 00:08:20.879 What if the school intentionally chooses not to control that circ that environment? 00:08:21.120 --> 00:08:22.000 What happens then? 00:08:22.079 --> 00:08:26.000 Is that still subject to a private damages action under Title IX? 00:08:26.480 --> 00:08:50.159 And Justice O'Connor further says, and in response to the kinds of criticisms you can imagine the dissenter is making, she says, quote, we stress that our conclusion here that recipients may be liable for deliberate indifference to known acts of peer sexual harassment does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment, or that administrators must engage in particular disciplinary action. 00:08:50.799 --> 00:08:56.080 Courts, quote, should refrain from second guessing the disciplinary decisions made by school administrators. 00:08:56.399 --> 00:09:07.679 So the court is saying certainly schools don't have to be perfect in preventing sexual harassment, nor do they need to be perfect in responding to sexual harassment after it has occurred. 00:09:07.840 --> 00:09:11.039 We don't second guess their uh disciplinary decisions. 00:09:11.279 --> 00:09:13.200 So, what how does that cash out? 00:09:13.360 --> 00:09:23.840 Justice O'Connor says the funding recipient, quote, must merely respond to known peer harassment in a manner that is not clearly unreasonable. 00:09:24.639 --> 00:09:26.159 Immediately, next sentence. 00:09:26.320 --> 00:09:28.960 This is not a mere reasonableness standard. 00:09:29.039 --> 00:09:30.559 That's what the word clear adds. 00:09:30.639 --> 00:09:34.000 It's not reasonable, unreasonable, it's clearly unreasonable. 00:09:34.159 --> 00:09:37.360 You might be wondering, well, what practical consequences that have? 00:09:37.519 --> 00:09:39.919 The very next sentence is very, very important. 00:09:40.159 --> 00:09:53.600 Justice O'Connor says, in an appropriate case, there is no reason why courts on a motion to dismiss for summary judgment or for directed verdict could not identify a response as not clearly unreasonable as a matter of law. 00:09:53.759 --> 00:09:55.120 Those multiple negatives are not mine. 00:09:55.279 --> 00:09:56.480 Those are Justice O'Connor's. 00:09:56.639 --> 00:09:59.440 So the point is don't worry, dissenters. 00:09:59.519 --> 00:10:01.440 We're not opening my can of worms here. 00:10:01.679 --> 00:10:03.360 So that's Justice Davis. 00:10:03.440 --> 00:10:16.080 So the key kind of doctrinal terms here are deliberate indifference, clearly unreasonable, and this is the kind of thing you might be able to resolve as a matter of law as a court. 00:10:16.399 --> 00:10:16.879 All right. 00:10:17.039 --> 00:10:19.840 So now let's go to the seven circuits on a box decision. 00:10:19.919 --> 00:10:20.799 I think I did pretty well. 00:10:21.120 --> 00:10:21.759 Laura. 00:10:22.480 --> 00:10:23.039 No notes. 00:10:23.200 --> 00:10:23.600 Loved it. 00:10:23.840 --> 00:10:25.120 Pretty pretty expeditious. 00:10:25.279 --> 00:10:41.200 So this case involves an alleged sexual assault by individual who is a football player for the University of Wisconsin, and the alleged victim was at that time a freshman at uh the University of Wisconsin. 00:10:41.360 --> 00:10:45.840 Alleged victim uh tells the police in the university she had been sexually assaulted. 00:10:46.080 --> 00:10:54.960 The university separates the alleged victim from her alleged rapist, and then ultimately expels him from campus. 00:10:55.279 --> 00:11:02.080 Alleged rapist is then criminally indicted, is ultimately acquitted by a jury. 00:11:02.240 --> 00:11:04.480 So that very significant, acquitted by a jury. 00:11:04.559 --> 00:11:13.440 Of course, jury is subject to different standards, but you can imagine there's a lot of factual investigation that happens during the criminal proceedings. 00:11:13.679 --> 00:11:19.840 After he was acquitted, he goes to the university asking it to readmit him. 00:11:20.159 --> 00:11:23.200 He is a prominent football player. 00:11:23.360 --> 00:11:31.919 There is a fair amount of pressure, I should say, from members of the university community urging the university president to readmit him. 00:11:32.240 --> 00:11:37.679 And ultimately, the university chooses to readmit him. 00:11:37.759 --> 00:11:46.879 Uh, the university president says, on the basis of new evidence that was uncovered uh during the course of the criminal proceeding. 00:11:47.519 --> 00:11:52.879 The victim opposes that, alleged victim opposes that, says, no, no, no, no, no, you shouldn't do that. 00:11:53.279 --> 00:11:56.080 University president does it anyways. 00:11:56.320 --> 00:12:10.240 Um, and then the student, or the, I should say, the alleged victim, uh, goes to the university, says, We have concerns about encountering the alleged rapist on campus. 00:12:10.480 --> 00:12:19.360 They say he had allegedly violated the earlier no

contact order, university disciplinary proceeding level at the at the beginning of this process. 00:12:19.679 --> 00:12:28.559 And in response, the university officials say, uh, no, we're not going to implement any additional safety measures. 00:12:28.639 --> 00:12:32.320 The no contact order is sufficient, so they keep that in place, but no additional safety measures. 00:12:32.480 --> 00:12:35.679 And they say, look, if you if you see him on campus, walk away. 00:12:35.759 --> 00:12:37.679 And if you feel unsafe, call 911. 00:12:37.840 --> 00:12:46.159 So that's the university's response that prompts a lawsuit under Title IX, under the framework set forth by Davis. 00:12:46.320 --> 00:12:49.360 And importantly, procedural posture is important here. 00:12:49.600 --> 00:12:59.360 This uh gets to summary judgment, and the both parties move for summary judgment, and the district court granted the university's motion for summary judgment. 00:12:59.440 --> 00:13:05.840 It says no reasonable jury could find that the university's conduct was clearly unreasonable. 00:13:06.000 --> 00:13:09.919 I know that's a lot of reasonables, but hopefully listeners can follow what I'm saying. 00:13:10.000 --> 00:13:14.480 So district court rules in favor of the university, says no need, no need to have a trial on this. 00:13:14.879 --> 00:13:28.879 And the plaintiff appeals, and on appeal, the panel, which was composed of uh judges Rovner, Kirsch, and Jackson Akawomi, uh, reverses in a divided decision. 00:13:29.039 --> 00:13:38.559 So just uh Judge Jackson Akawomi writes, joined by Judge Rovner, says, No, this is a jury question, and Judge Kirsch dissents. 00:13:39.039 --> 00:13:41.200 That prompts an onboard petition. 00:13:41.600 --> 00:13:58.000 And just to just to flag this, Kyan, I have to say, as a practice pointer, the last line of Judge Kirsch's dissent suggests that, or it says actually, that he encourages the full court to act swiftly to bring our circuit back into alignment with Davis. 00:13:58.399 --> 00:14:07.600 And that in the practice of law is what we think of as a hint that one should probably file a petition for on banc review because it is likely to get granted. 00:14:08.000 --> 00:14:09.360 Yes, exactly, exactly. 00:14:09.600 --> 00:14:14.720 Did not take a Nostradamus to see that there might be some pretty good odds of success in an onbank review. 00:14:15.039 --> 00:14:17.440 Judge Kirsch giving counsel a big elbow in the ribs. 00:14:17.759 --> 00:14:19.759 Exactly, exactly, exactly. 00:14:19.919 --> 00:14:34.799 And uh indeed the on banque petition was granted, and the majority of the on banque court sides with the university and affirms the district court's order granting the university summary judgment. 00:14:34.960 --> 00:14:49.279 And then there were some multiple writings, there are concurrences, dissents, and uh we will get through them rapidly, but before we dive into the details, I want to talk, I just want to give listeners an overview of the voting arrangement because I do think that's significant here. 00:14:49.759 --> 00:15:08.000 Particularly because there are a number of relatively new arrivals to the court, and it's these sorts of en banc decisions that give practitioners a sense of sort of where the various judges sit on things, both on, I and this is why the procedural posture is important, on the substance of Title IX and on the broader issue of summary judgment. 00:15:08.080 --> 00:15:14.559 What are the sorts of when when do things are things sufficiently clear that we can grant summary judgment, we can take the case away from the jury, etc. 00:15:14.879 --> 00:15:19.440 So Judge Kirsch, unsurprisingly, is the author of the on banque decision. 00:15:19.519 --> 00:15:25.039 That's not uncommon when you have a dissent from the panel decision and the dissenter ultimately prevails on Bonk. 00:15:25.200 --> 00:15:26.960 Um, not uncommon that they'll write. 00:15:27.200 --> 00:15:37.039 The dissent, unsurprisingly, written by Judge Judge Jackson Akawomi, who importantly is joined by Judges Rovner, Pryor, and Maldonado. 00:15:37.360 --> 00:15:42.639 So all of the other judges on the seventh circuit, so that's uh one, two, three, four. 00:15:42.720 --> 00:15:44.399 So that's four judges in dissent. 00:15:44.639 --> 00:15:53.759 The other judges on the seventh circuit, one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, right? 00:15:54.000 --> 00:15:54.320 Twelve. 00:15:54.399 --> 00:15:55.120 Is that right, Laura? 00:15:55.200 --> 00:15:55.679 Do I have that right? 00:15:55.840 --> 00:15:56.480 Twelve judges? 00:15:56.639 --> 00:15:56.879 Yes. 00:15:57.039 --> 00:15:58.559 So eight four is the bottom line. 00:15:58.720 --> 00:15:59.279 Eight, four. 00:15:59.440 --> 00:16:06.240 And so that that includes that includes recent appointees from Democratic presidential administrations. 00:16:06.639 --> 00:16:09.360 I'll just say it that way, that joined the majority. 00:16:09.519 --> 00:16:11.600 So that's that is that is significant. 00:16:11.759 --> 00:16:22.399 I think it's also significant about because it says something about the likelihood that a cert petition is successful, both at the cert stage and perhaps even more importantly, on the merit stage. 00:16:22.480 --> 00:16:23.120 And we will get to the. 00:16:23.519 --> 00:16:26.879 And one of the one of the dissenters, though, uh was a Bush appointee. 00:16:27.200 --> 00:16:28.000 That's true. 00:16:28.320 --> 00:16:32.639 So so, you know, just to it's not not a total party line breakdown on either side. 00:16:32.960 --> 00:16:34.480 Not a total party line breakdown. 00:16:34.559 --> 00:16:34.879 Thank you. 00:16:34.960 --> 00:16:35.679 That's that's a good point. 00:16:35.759 --> 00:16:36.320 That's a good point. 00:16:36.480 --> 00:16:38.799 We will get to what the Supreme Court might do. 00:16:38.879 --> 00:17:00.559 And again, that's why we talked about the voting lineup in Davis,

because some of the concurrences here suggest, oh, I mean, this is this case ultimately, to cut cut a long story short, the court ultimately resolves this pretty much on the summary judgment standard and says, look, you gotta show that this act was clearly unreasonable, and a jury couldn't find that it was clearly unreasonable. 00:17:00.720 --> 00:17:01.759 End of story. 00:17:02.240 --> 00:17:07.680 So next up today we have Steidinger versus Blackstone Medical Services. 00:17:07.759 --> 00:17:13.920 And this case is about everyone's favorite federal statute, the Telephone Consumer Protection Act. 00:17:14.160 --> 00:17:25.680 Now, I think obviously we live in very partisan, polarized times, but if there's one thing we can all agree on, maybe it's that we don't like spam call phone calls and spam text messages. 00:17:25.839 --> 00:17:35.839 And Congress, in its infinite wisdom, decided to do something about this way back in 1991 by passing uh the Telephone Consumer Protection Act or the TCPA. 00:17:36.000 --> 00:17:52.400 And like most federal statutes are, it's complicated, many sections and subsections, but the overall goal of this statute was to allow people essentially the opportunity to opt out of these telemarketing telephone calls. 00:17:52.480 --> 00:18:03.359 And at the time, obviously in 1991, we weren't dealing necessarily with text messages, we were dealing primarily with telephone calls and also something that our younger listeners may not be familiar with called faxes. 00:18:03.680 --> 00:18:05.279 I know uh an interesting concept. 00:18:05.440 --> 00:18:10.559 I'll I'll leave you to Google it for yourself so we won't go into an in-depth explanation of the facts on this podcast. 00:18:10.640 --> 00:18:15.839 But multiple Supreme Court cases involving uh involving this was a big illicit faxes. 00:18:16.799 --> 00:18:17.599 It was a problem, right? 00:18:17.680 --> 00:18:20.079 People were getting faxes that they did not want to receive. 00:18:20.400 --> 00:18:24.720 So those are were the primary concerns of Congress in 1991. 00:18:24.799 --> 00:18:43.599 And there's a a very uh charming image, I believe, that is evoked in a lot of the the judicial decisions surrounding the TCPA of the family around the dinner table and and the in the annoying, intrusive ringing of the telephone and disrupting their this peaceful time. 00:18:43.839 --> 00:18:46.880 So that's that's kind of the purpose uh behind the TCPA. 00:18:46.960 --> 00:18:48.799 And this case is is about now. 00:18:48.880 --> 00:18:50.640 Obviously, we have some new technologies. 00:18:51.119 --> 00:18:58.640 Not everyone's dinner tables looks like uh everyone looking at one another in the eye and uh talking about reciting poetry spontaneously. 00:18:58.960 --> 00:19:00.720 Well, I don't know what goes on at Europe's time. 00:19:01.359 --> 00:19:02.160 Are there devices? 00:19:02.240 --> 00:19:02.720 Is that weird? 00:19:03.200 --> 00:19:03.680 Absolutely not. 00:19:03.759 --> 00:19:08.640 No, we've got a little wooden box in all of the forms that use my my my wife insists. 00:19:08.880 --> 00:19:10.319 So a Faraday gauge. 00:19:12.559 --> 00:19:19.759 So maybe maybe the TCPA is not as relevant for your particular family, but for for many people, this is still an issue. 00:19:19.920 --> 00:19:29.680 And in fact, this case arises out of a class action lawsuit filed under the TCPA in regard to marketing text messages that the plaintiffs were receiving. 00:19:29.920 --> 00:19:36.240 They said they didn't want to receive and they had they had tried to opt out, but were still receiving those from Blackstone Medical Services. 00:19:36.400 --> 00:19:43.839 Now the plaintiffs filed this and they also brought uh pendant state law claims under the Florida Telephone Solicitation Act. 00:19:44.000 --> 00:19:50.240 A lot of states, I think it's 34 states now, have similar state-level TCPA laws. 00:19:50.400 --> 00:19:56.079 Indiana, I believe, was a pioneer in this area, and we were one of the first states to have this as well. 00:19:56.319 --> 00:19:59.759 So, in any event, Blackstone moved to dismiss. 00:20:00.000 --> 00:20:16.160 They were arguing that Section 227C5, the subsection that the plaintiffs were invoking in their complaint, does not create a private right of action for claims based on text messages, only for claims based on phone calls. 00:20:16.400 --> 00:20:32.960 One thing to note here, and there is a side note about this in the opinion, plaintiffs apparently had claims based on both text messages and phone calls, but they didn't argue in the district court that they could proceed on the basis of their factual allegations about the phone calls alone. 00:20:33.119 --> 00:20:41.680 They sort of climbed into the defendant's reality here and decided that what the case was about is whether they had a private right of action to proceed based on the text messages. 00:20:41.759 --> 00:20:47.599 So it's hard to say how things would have turned out uh had they gone a different road, but that's in any event what they did. 00:20:47.839 --> 00:20:52.240 So, and then they didn't obviously raise that on appeal, not that they could have at this point. 00:20:52.480 --> 00:21:04.640 The district court agreed with the defendants, said no private right of action here based on text messages, and then declined to exercise supplemental jurisdiction over the pen and state law claims, so the entire case went away. 00:21:04.960 --> 00:21:12.480 Plaintiffs appealed, this was a case out of the the Central District of Illinois, and plaintiffs appealed then here to the Seventh Circuit. 00:21:12.640 --> 00:21:14.480 And that was the that was the issue. 00:21:14.559 --> 00:21:20.160 Basically, this case is about whether a text message is a telephone call on the statutory language. 00:21:20.480 --> 00:21:22.319 So let's look at that language. 00:21:22.720 --> 00:21:28.079 Before we begin, Laura, so is this only about this narrow provision of the

TCPA? 00:21:28.160 --> 00:21:31.920 Or realistically are we really talking about the entire statute? 00:21:32.079 --> 00:21:37.200 Is there any reason to think the telephone call means one thing in this provision and means something else in other provisions? 00:21:37.599 --> 00:21:38.240 Actually, there is. 00:21:38.640 --> 00:21:39.680 Ah, okay. 00:21:39.920 --> 00:21:40.240 All right. 00:21:41.839 --> 00:21:44.720 Consistency is the defense of the small mind, right? 00:21:45.119 --> 00:21:49.119 Congress uh is is not going to be small-minded here, right? 00:21:49.200 --> 00:21:50.720 They're using different terminology. 00:21:50.960 --> 00:21:54.400 And that indeed is a preview of the court's reasoning for us. 00:21:54.559 --> 00:21:59.680 Uh, part of the reasoning behind the decision is the the judges are looking at other provisions. 00:22:00.160 --> 00:22:02.640 Of the same statute in which Congress has used different language. 00:22:02.799 --> 00:22:02.960 Right. 00:22:03.200 --> 00:22:03.440 Ah. 00:22:03.759 --> 00:22:10.640 So this at this actually is a relatively narrow decision in terms of speaking about this particular subsection. 00:22:10.799 --> 00:22:26.799 That subsection provides it creates a private right of action for an individual, quote, who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violations of the regulations prescribed under this subsection. 00:22:27.119 --> 00:22:31.920 So again, it refers only to this subsection, but it uses those words telephone call. 00:22:32.319 --> 00:22:37.759 And the panel looks back, they say, okay, the TCPA, as we know, was enacted in 1991. 00:22:38.079 --> 00:22:41.279 The first text message was sent in 1992. 00:22:41.519 --> 00:22:45.920 So Congress could not have been thinking in 1991 about a text message, right? 00:22:46.000 --> 00:22:47.759 That didn't really exist at that time. 00:22:48.160 --> 00:22:50.880 Of course, we know though that although which way does that cut? 00:22:51.119 --> 00:22:51.759 Right, right. 00:22:52.000 --> 00:23:00.160 We know I mean a statute's meaning is fixed in time, but it can also evolve with technological applications, right? 00:23:00.240 --> 00:23:03.680 We see this obviously most prominently maybe in Second Amendment jurisprudence. 00:23:04.000 --> 00:23:04.160 Right. 00:23:04.240 --> 00:23:11.359 Or I mean, imagine uh to take a far more controversial example, the Supreme Court's recent decision in the birthright citizenship case, right? 00:23:11.519 --> 00:23:17.759 Where illegal immigration didn't exist at the time, for the most part, that the 14th Amendment was adopted. 00:23:17.920 --> 00:23:23.759 So you're asking, well, what does this specific language mean applied to this? 00:23:24.240 --> 00:23:25.039 New circumstance. 00:23:25.279 --> 00:23:26.480 New circumstance that didn't exist. 00:23:26.559 --> 00:23:33.680 So there was no specific intent by the drafter or ratifier of the language

about this specific thing. 00:23:33.759 --> 00:23:36.240 So we have to ask, well, what is the concept? 00:23:36.640 --> 00:23:45.599 And it's a special I love this case because a call means something specific to us today because we have text messages. 00:23:45.839 --> 00:23:50.319 But what does the word call mean in a world where text don't exist? 00:23:50.960 --> 00:23:55.680 Well, I do think, and that the oral argument was somewhat revealing on this point. 00:23:55.839 --> 00:24:07.440 There is uh somewhat of a divide, I think, generationally, between the way that people who do remember a time before text messages and people who don't view those messages and view telephone calls. 00:24:07.759 --> 00:24:15.839 I think part of the reason this case came out the way that it did is that Judge Kirsch ultimately thinks that text messages are more like postal mail. 00:24:16.000 --> 00:24:20.640 He said during the oral argument, you don't have to go to the mailbox and get your mail. 00:24:20.960 --> 00:24:24.640 And he's right about that to a certain degree, right? 00:24:24.720 --> 00:24:30.480 But it I think a lot of people might also view text messages very differently from how they view postal mail. 00:24:30.559 --> 00:24:32.720 And so that's part of what's going on here, right? 00:24:33.039 --> 00:24:33.359 Right. 00:24:33.599 --> 00:24:41.119 Well, and I I think the your point that text messages didn't exist seems so significant to me. 00:24:41.279 --> 00:24:52.160 Because if the TCPA had been adopted today and it uses the phrase telephone call, I mean it would be pretty obvious that we couldn't be talking about we're not talking about text messages. 00:24:52.240 --> 00:24:53.759 That's not a word that you would use. 00:24:54.000 --> 00:25:05.839 But because it was adopted before telephone before text messages, the notion that Congress recognized this distinction and said, well, text messages aren't as annoying because you can they're like mail. 00:25:06.000 --> 00:25:09.279 Well, Congress had no thought about text messages. 00:25:09.359 --> 00:25:10.079 They didn't exist yet. 00:25:10.160 --> 00:25:12.799 So what is the that that's I think the tricky part, right? 00:25:13.119 --> 00:25:17.839 Well, and one point that, and it is Judge Kirsch writing uh for the panel here. 00:25:18.160 --> 00:25:28.960 One point that he makes in in his decision, or the panel's decision, is to say in 1991, a telephone call referred to some sort of communication via sound, right? 00:25:29.119 --> 00:25:33.119 We would think of a text message as per the name, right, as being written. 00:25:33.359 --> 00:25:37.680 But my immediate next thought was what about text messages that are voice recordings? 00:25:37.920 --> 00:25:38.880 Which is very common now. 00:25:40.319 --> 00:25:42.160 More common in an advertising team. 00:25:42.480 --> 00:25:42.720 Right. 00:25:42.960 --> 00:25:56.720 So that particular argument, I I don't believe was made by by the plaintiffs in this case, but I'd be interested to know if there would be a different, if there would be a narrow path for narrowing this decision. 00:25:56.960 --> 00:26:00.240 That is brilliant, Laura, because certainly a voicemail. 00:26:00.480 --> 00:26:01.359 A voicemail is a call. 00:26:01.599 --> 00:26:02.400 That's communication via the case. 00:26:02.480 --> 00:26:03.119 I mean, that's a call. 00:26:03.599 --> 00:26:04.000 That's a call. 00:26:04.079 --> 00:26:04.319 Absolutely. 00:26:04.559 --> 00:26:08.799 And what's the difference between a voicemail and a voice to text? 00:26:08.880 --> 00:26:12.079 I mean, that those are to the user, they are identical. 00:26:12.640 --> 00:26:14.079 The voicemail is more annoying. 00:26:14.240 --> 00:26:14.480 No. 00:26:14.799 --> 00:26:19.839 Um you just know that you have a voicemail, that's the worst. 00:26:20.079 --> 00:26:20.720 That is the worst. 00:26:20.880 --> 00:26:22.400 That is the worst because it needs to be anything. 00:26:22.640 --> 00:26:26.880 And you gotta put some passwords and accent on marvelous on someone. 00:26:27.119 --> 00:26:27.599 Oh my goodness. 00:26:27.920 --> 00:26:29.920 To the core of what the act is supposed to be. 00:26:31.119 --> 00:26:34.319 Well, and it occurs to me that uh, of course, telegrams existed. 00:26:34.559 --> 00:26:37.759 And telegrams are messages passed over the wires. 00:26:38.319 --> 00:26:43.599 But you're missing the most you're missing the most significant analog here, which is of course faxes. 00:26:43.680 --> 00:26:43.920 Uh-huh. 00:26:46.880 --> 00:27:01.279 So one of the things the panel looked at here also is there are other provisions surrounding 227c5 that talk about telephone solicitations, which is defined to include calls or messages. 00:27:01.839 --> 00:27:07.119 Whereas in contrast, 227c5 is only using telephone call, right? 00:27:07.200 --> 00:27:08.319 So there's a difference there. 00:27:08.559 --> 00:27:15.279 And we assume obviously, one of our canons of statutory interpretation, we assume that when Congress uses different words, it means different things. 00:27:16.000 --> 00:27:19.200 Sometimes I think perhaps that assumption is optimistic. 00:27:19.359 --> 00:27:30.400 But so when we when we think about faxes, one of the ways that we can think about this too is to think is a text message more like a fax or is it more like a telephone call? 00:27:30.640 --> 00:27:30.960 Right. 00:27:31.359 --> 00:27:40.640 There are sections of this statute that reflect that Congress understood faxes to be messages and not calls, even though they are transmitted by telephone line. 00:27:41.039 --> 00:27:43.599 So Congress is viewing faxes differently here. 00:27:44.480 --> 00:27:55.359 I think based on this opinion, it would be pretty fair to say that if the issue ever came up, there would not be a private right of action under 227 C5 for faxes, right? 00:27:55.759 --> 00:27:58.880 Telephone call would not be defined to include faxes there. 00:27:59.759 -->

00:28:00.720 In modern understanding. 00:28:05.920 --> 00:28:14.400 So this provision, private right of action, and it's specifically about you put your name on the do not call list and they still call you, right? 00:28:14.559 --> 00:28:18.480 That's what the so is there a do not fax list? 00:28:19.920 --> 00:28:20.799 That's a good question. 00:28:20.880 --> 00:28:25.839 I believe that there Because the private right of action doesn't, I mean, it very much doesn't mention faxes. 00:28:26.160 --> 00:28:29.680 Faxes are mentioned throughout the TCPA, right? 00:28:30.000 --> 00:28:34.240 Like that seems an unusual statutory lacuna. 00:28:35.039 --> 00:28:36.480 There is a do not fax list. 00:28:36.559 --> 00:28:38.559 It is written in cursive with a quilt pen. 00:28:39.920 --> 00:28:43.359 You have to send in a carrier page to do not fax list. 00:28:43.839 --> 00:28:50.640 So according to the FCC, there is no centralized do not fax registry. 00:28:50.880 --> 00:28:56.720 Ah but you can obviously pursue actions under the TCPA related to these. 00:28:56.880 --> 00:29:00.880 You can, of course, you can of course always request to be removed from communications. 00:29:00.960 --> 00:29:05.200 And that's what you would need to do in order to trigger the application of the TCPA. 00:29:05.279 --> 00:29:11.039 Because to be clear, it's not just the receiving of the unwanted message that is the basis for the action. 00:29:11.119 --> 00:29:13.839 It's the request not to receive the messages. 00:29:14.000 --> 00:29:23.119 And then I believe you actually have to receive two more messages after you have tried to opt out in order for the statutory protections to be triggered. 00:29:23.200 --> 00:29:26.559 So the business kind of gets one, it's like the one free bite rule for dogs, right? 00:29:26.880 --> 00:29:27.279 I see. 00:29:27.440 --> 00:29:27.680 I see. 00:29:27.920 --> 00:29:28.960 So I think that's how that works. 00:29:29.279 --> 00:29:29.599 I see. 00:29:29.759 --> 00:29:35.359 So the so 227C or 227, is that C C5? 00:29:35.680 --> 00:29:35.920 C5. 00:29:36.480 --> 00:29:44.319 So 227 C5 is addressing a separate requirement that specifically applies to telephone calls. 00:29:44.480 --> 00:29:50.319 There's the broader rule that says you're not allowed, there are certain things you're not allowed to do with telephone calls, telephone messages, faxes. 00:29:50.720 --> 00:29:52.319 This is about the private right of action. 00:29:52.400 --> 00:29:53.599 And that's a that's an important distinction. 00:29:53.920 --> 00:29:56.000 Oh, there's no private right of action for the other rule. 00:29:56.400 --> 00:30:01.839 So remember, when we when we think about a private right of action, we're Congress has to be speaking. 00:30:01.920 --> 00:30:06.079 And I think we covered this uh in your case as well, the mandatory, not precatory terms. 00:30:06.240 --> 00:30:14.799 We we need to see clear and unequivocal language suggesting that Congress wanted to create that

private enforcement mechanism for the statute, right? 00:30:14.960 --> 00:30:21.839 So there are some elements of the TCPA where courts have found that there are private rights of action and there are some where they have not, right? 00:30:21.920 --> 00:30:27.599 And here there is one, but it's only for telephone calls and not for text messages, at least according to the Seventh Circuit. 00:30:27.839 --> 00:30:28.400 Let me ask you this. 00:30:28.559 --> 00:30:33.119 227B, does that appear all over the Seventh Circuit's opinion? 00:30:33.279 --> 00:30:33.599 Yep. 00:30:33.839 --> 00:30:39.519 That has additional rules about that apply to all different kinds of communications technologies. 00:30:39.839 --> 00:30:44.799 Is there no private right of action in the statute under 227 to enforce 227b? 00:30:45.200 --> 00:30:50.079 Yes, Cayenne, there is a private right of action to enforce uh 227B. 00:30:50.559 --> 00:30:59.839 And I one might fairly wonder why plaintiffs didn't proceed under that provision, at least in addition to, if not instead of, 227c5, right? 00:31:00.000 --> 00:31:02.480 And you know, there may be reasons why they did not. 00:31:02.640 --> 00:31:06.240 I certainly were not privy to that, but that's something maybe to think about for future. 00:31:06.799 --> 00:31:10.319 And is that and is that what's going on with uh Judge Kirsch's opinion? 00:31:10.480 --> 00:31:25.920 I mean, is that the that he's saying maybe there is a private right of action with respect to text messages under 227B because it uses a broader array of categories of subject communications, but 227C is a telephone call. 00:31:26.319 --> 00:31:30.960 I think in part, he's certainly citing cases that discuss section 227b. 00:31:31.119 --> 00:31:37.279 Those are cases cited by plaintiffs here in support of their argument that they do have this private right of action based on text messages. 00:31:37.440 --> 00:31:42.960 And his point is, well, actually that's a different subsection of the statute, and it's a different statutory language. 00:31:43.200 --> 00:31:51.519 And I mean, indeed, other circuits have held that that 227B, and and then the Seventh Circuit has as well, applies to text messages. 00:31:51.599 --> 00:31:55.279 So it does appear that plaintiffs probably could have proceeded under that theory. 00:31:55.839 --> 00:32:12.880 Part of the reason is the I mean, the language, just to give listeners an example, 227B applies to, among other things, using any fax machine, computer, or other device to send to a fax machine an unsolicited advertisement. 00:32:12.960 --> 00:32:14.559 So that's just fax machines. 00:32:15.279 --> 00:32:31.680 Then there's a separate provision that says to initiate any telephone call using an artificial voice, okay, and then to make any call using any automatic telephone dialing system, telephone number assigned to a paging service. 00:32:31.920 --> 00:32:33.279 Hmm, paging service. 00:32:33.759 --> 00:32:34.960 Paging service, is

that a call? 00:32:35.279 --> 00:32:37.599 We're gonna have to go to many of our leftists as well. 00:32:37.680 --> 00:32:38.000 I think that's a good thing. 00:32:38.160 --> 00:32:39.680 So a text pager at that. 00:32:40.720 --> 00:32:43.599 Well, and that that's what I found interesting about Judge Kirsch's opinion. 00:32:43.759 --> 00:32:51.519 There's not a deep dive into 227B that explains why exactly it's different than 227C. 00:32:52.000 --> 00:32:58.559 And that is very important because I am I think it's highly likely that we're gonna see a cert petition here. 00:32:58.880 --> 00:33:12.799 And the what the plaintiffs are gonna need to do is to say, uh look, all of these opinions are totally irreconcilable, uh, and a lot will depend on the defendants in this case, the response to the cert petition, saying, no, no, no, they're actually, you know, there's not actually consistency. 00:33:12.880 --> 00:33:15.119 There are some different provisions and so forth. 00:33:15.440 --> 00:33:26.160 Yeah, I was actually, I'd seen some scholarship out there about the, oh, this creates a circuit split now, you know, and and there are other circuits that have held that other subsections of the TCPA do apply to text. 00:33:26.400 --> 00:33:30.799 But I think that's part of Judge Kirsch's point, is those are other subsections of the TCPA. 00:33:30.880 --> 00:33:36.559 So I think for for defendants here who were victorious, uh, they got an affirmants, unanimous affirmants from the panel. 00:33:36.720 --> 00:33:41.359 If they're filing their op cert, the point they're gonna really need to make is look, there's no split here. 00:33:41.440 --> 00:33:43.039 This is a different subsection of the statute. 00:33:43.119 --> 00:33:53.279 And so nobody's held that there is no or that there is a private right of action to enforce section 227 C5 with respect to text messages. 00:33:53.440 --> 00:33:54.480 So there's no split. 00:33:54.880 --> 00:34:00.799 And did you say that the Seventh Circuit had previously held that a text message falls under 227B? 00:34:01.039 --> 00:34:02.160 Under 227B, yeah. 00:34:02.480 --> 00:34:06.079 Interesting that Judge Kirsch didn't feel bound by the reasoning of that. 00:34:06.240 --> 00:34:09.360 I mean, obviously it addresses a different provision, but I think that was his point. 00:34:09.519 --> 00:34:19.199 I think when he discussed that case, he said, you know, look, it's just he kind of lumped that case in with all of the other 227B cases and said, you know, look, it's it's different, different provision, different language. 00:34:19.519 --> 00:34:25.360 And Congress has the right to make those kind of policy decisions as to which the scope of the revenue provisions of each provision. 00:34:25.599 --> 00:34:29.039 And that's one of the two things that really kind of limits the impact of this decision. 00:34:29.199 --> 00:34:34.239 There was certainly some news, it made it made some news, and oh well, now, you know, look, you can

send these text messages. 00:34:34.400 --> 00:34:35.360 Not so fast, right? 00:34:35.519 --> 00:34:37.599 There's 227B for one thing. 00:34:37.760 --> 00:34:46.159 And then there are also the 34 different state TCPAs, many of which are broader and and more updated than the federal. 00:34:46.320 --> 00:34:57.440 I mean, there's still some limitations on how they can be used, but of course, if you're if you have consumers who are not opting out and and there are people who want to receive these people sign up for them. 00:34:57.519 --> 00:34:59.679 I've signed up for them to receive promotions, right? 00:34:59.760 --> 00:35:02.480 So this is there there can be value in these for consumers as well. 00:35:02.639 --> 00:35:04.000 So a lot to talk about there. 00:35:04.320 --> 00:35:04.960 Excellent. 00:35:05.199 --> 00:35:05.679 All right. 00:35:05.840 --> 00:35:07.199 Mark, what do you have for us today? 00:35:07.519 --> 00:35:17.679 Well, we we began this podcast with some uh a case arising out of unfortunate facts, and we're gonna uh end the podcast with a case arising out of bad facts, bad actions. 00:35:17.920 --> 00:35:20.559 My case is Pavlovich versus Gaiman. 00:35:20.639 --> 00:35:36.239 Um, the Gaiman name may be familiar, it's uh famous science fiction/slash fantasy author Neil Gaiman, who has made a lot of bad news lately uh for accusations of sexual assault, in this case arises out of one of those accusations. 00:35:37.039 --> 00:35:45.679 Our case is centered mostly in New Zealand, which will become critically important to how the case uh is resolved. 00:35:45.920 --> 00:35:47.679 The the facts are that Mr. 00:35:47.760 --> 00:36:01.280 Gaiman's wife uh met the plaintiff at a time when the plaintiff was in in pretty dire economic circumstances, uh, was occasionally uh without a home, out of work, and was befriended by Mr. 00:36:01.440 --> 00:36:09.599 Gaiman's wife, who started uh having the plaintiff run errands and do other tasks, sometimes for pay, sometimes just on a friendship basis. 00:36:09.840 --> 00:36:10.880 And and where was this, Mark? 00:36:11.119 --> 00:36:11.599 New Zealand. 00:36:12.320 --> 00:36:15.360 On an island off the coast of Auckland, New Zealand. 00:36:15.599 --> 00:36:15.840 Okay. 00:36:16.079 --> 00:36:21.599 Uh plaintiff is invited to babysit for uh the couple, at which time she meets Mr. 00:36:21.679 --> 00:36:23.119 Gaiman for the first time. 00:36:23.360 --> 00:36:25.679 On that occasion, the complaint says that Mr. 00:36:25.760 --> 00:36:31.199 Gaiman sexually assaulted her, and that happened several more times over a course of time. 00:36:31.360 --> 00:36:31.519 Mr. 00:36:31.599 --> 00:36:50.880 Gaiman now is a legal uh resident in the United States, lives in uh the Western District of Wisconsin, and the plaintiff who now lives in Scotland, just to show how international this case is, brought suit here under several federal statutes, most notably the Trafficking Victims Protection Act, as well as a number

of state courts, uh, state torts. 00:36:51.280 --> 00:36:53.039 The case was dismissed. 00:36:53.280 --> 00:36:53.519 Mr. 00:36:53.599 --> 00:37:00.960 Gaiman filed a petition uh motion to dismiss under forum nonconvenience, claiming that this case really belongs in New Zealand. 00:37:01.039 --> 00:37:02.880 The operative facts occurred there. 00:37:03.119 --> 00:37:13.679 Witnesses are going to be there other than the parties, and as any any defendant moving for forum nonconvenience would argue, he's he agrees that he's subject to the jurisdiction of New Zealand. 00:37:13.920 --> 00:37:24.159 And so we have a I think really importantly, we need to note that a dismissal on this grounds is is an act of discretion and reviewed for abuse of discretion. 00:37:24.239 --> 00:37:39.599 So we're gonna walk through the facts and the the analysis, but we have to remember that the Seventh Circuit is keeping the thumb on the scale of the district court, for lack of a better way to put it, and reviewing these factual determinations with deference to the district court as they're required to do. 00:37:39.679 --> 00:37:44.480 But when we look at forum non-convenience, we look really answered two big questions. 00:37:44.719 --> 00:37:48.320 The first is does the other forum even provide a remedy? 00:37:48.400 --> 00:37:52.639 Is it an isn't actually an adequate forum for the resolution of the dispute? 00:37:52.800 --> 00:37:58.400 We don't just say certain operative facts happen there, so we're off to that forum, even if there's no remedy to be found. 00:37:58.559 --> 00:38:18.480 And the second asks whether the balance of private and and public considerations tips in favor of setting in the case uh to the other forum, essentially a factor-based analysis, weighing the different relative considerations about discovery and the convenience of the forum in the public policy interests in the case. 00:38:18.639 --> 00:38:24.079 Uh so interesting, the the first the first question is Is does New Zealand uh represent an adequate forum? 00:38:24.159 --> 00:38:25.199 Is there a remedy here? 00:38:25.360 --> 00:38:30.960 Again, when you're analyzing international law, you really have to look at at what different systems are in place. 00:38:31.039 --> 00:38:43.199 And New Zealand has a comprehensive mental health remedy that's provided for uh plaintiffs in this position, and that bars uh most tort recoveries, not all, as we'll talk about in a second. 00:38:43.360 --> 00:38:51.199 Unfortunately, that system only applies to people who were living in New Zealand at the time of suit, and our plaintiff is not, and she's as I mentioned, she's in Scotland. 00:38:51.360 --> 00:39:05.280 So the argument there is they, while New Zealand may have created this mental health counseling program, but there's not compensatory damages, and I'm not even eligible for the mental health program because I'm not a resident at the at this time. 00:39:05.519 --> 00:39:10.880 But as the court notes,

there is the possibility of punitive damages. 00:39:11.199 --> 00:39:16.639 And most forums where a punitive damages uh remedies available, it's a very high standard. 00:39:17.039 --> 00:39:19.519 The language is truly outrageous conduct. 00:39:19.760 --> 00:39:28.639 And because there is an opportunity to obtain punitive damages under that admittedly high standard, that the court says that that's a remedy. 00:39:28.800 --> 00:39:38.639 And it rejects an argument that because punitive damages aren't a form of compensation, but a means of punishing and creating a social deterrent, that that doesn't make it an adequate remedy. 00:39:38.719 --> 00:39:40.880 And the court says, you know, look, a remedy is a remedy. 00:39:41.119 --> 00:39:48.079 It's something that's motivated by different things than just providing compensation or that kind of motivation. 00:39:48.159 --> 00:39:49.360 Uh, it really doesn't matter. 00:39:50.000 --> 00:39:54.639 They had they have a chance to obtain damages, and that that's that's all there is to it. 00:39:54.960 --> 00:40:06.639 The second level of this argument is that New Zealand may not be a adequate form because in that system the courts have the discretion to require the posting of a bond. 00:40:06.719 --> 00:40:09.280 And some of these can be quite high, according to the record. 00:40:09.440 --> 00:40:14.880 And so the plaintiff would potentially not be able to pursue her case if a bond was set to an amount she couldn't pay. 00:40:15.039 --> 00:40:27.599 And the court treated, you know, again, using the abusive discretion uh standard, saw that the district court found this to be speculative, that there was no certainty of a bond, there was no certainty of the amount, it was all within the discretion of the courts in New Zealand. 00:40:27.760 --> 00:40:31.039 And we weren't going to shut the door to that forum just based on that. 00:40:31.119 --> 00:40:34.639 And the court said that, you know, under an abusive discretion standard, that that's sufficient. 00:40:34.960 --> 00:40:46.480 And the bond, Mark, just for listeners who had the same question I did, and I had to look this up when I was reading the opinion, that would be for the defendant's legal fees in the event that the plaintiff does not prevail, right? 00:40:46.559 --> 00:40:48.719 So different from the system we have here. 00:40:49.039 --> 00:40:50.480 Not an open courthouse story. 00:40:50.719 --> 00:40:53.599 It's basically to vindicate a loser pays kind of system. 00:40:53.760 --> 00:40:59.679 And I think part of what's going on here on this first factor, Mark, right, is New Zealand is an Anglophone country. 00:40:59.760 --> 00:41:01.920 It sounds like the kind of country that has a real legal system, right? 00:41:02.000 --> 00:41:16.880 I mean, isn't that part of what's going on that a federal court is going to be real reluctant to say that the courts of another country are so deficient, so contrary to principles of natural justice that we can't possibly send someone to go litigate there. 00:41:17.039 --> 00:41:18.960 I mean, I think that's really what's going on here, right? 00:41:19.039 --> 00:41:27.440 That courts, countries can set up their civil justice systems in lots of different ways, and they can have sort of no-fault systems that are basically insurance. 00:41:27.519 --> 00:41:29.280 And the court's saying, look, that's fine. 00:41:29.360 --> 00:41:37.599 As long as there's some mechanism for compensation, then that's and we make an interesting law journal article to see what countries have been determined not to provide an adequate form. 00:41:38.000 --> 00:41:41.519 I I I imagine the number is pretty pretty low, potentially even zero. 00:41:41.840 --> 00:41:45.840 Well, plaintiff's argument here, I think, implicitly recognized that, right? 00:41:45.920 --> 00:41:59.920 And they they tried an interesting tactic, I thought, and in in short, it was kind of well, Congress has actually already decided that all of the other alternative fora for this cases under the TVPA are inadequate, right? 00:42:00.079 --> 00:42:03.119 That's the kind of the entire reason that it enacted the statute. 00:42:03.360 --> 00:42:04.320 Am I am I? 00:42:04.800 --> 00:42:14.239 No, I that that I mean, ultimately the court does say that, you know, we'll assume for sake of argument that Congress does intend extratorality for the act. 00:42:14.320 --> 00:42:22.559 And you can see a reason for that, that this is something we, you know, when we're talking about trafficking and sexual assault, that we really want to protect people. 00:42:22.639 --> 00:42:30.239 We will we think that that, you know, there are, if you watch the news, there are definitely places on this this earth that do not take this issue seriously. 00:42:30.320 --> 00:42:32.000 And we we want to give a remedy for that. 00:42:32.079 --> 00:42:38.800 If people can get into the United States courts and and get jurisdiction over the defendant, we'll we'll allow that. 00:42:38.880 --> 00:42:41.039 I can see a policy choice favoring that. 00:42:41.119 --> 00:42:43.039 And the and the court says we'll agree with that. 00:42:43.199 --> 00:42:48.159 But at the end of the day, we have got a way, and we this is this is us shifting into the factor analysis. 00:42:48.320 --> 00:43:21.519 We've got away what the interests are, and New Zealand has a stake here, largely because of the location of the incidents that occurred and the fact that none of them were connected to the United States at the time, and that New Zealand has its its own system and has made its own policy decisions about what the remedies for this should be, so that even if Congress had created a system that allowed international disputes to be brought here, we are gonna consider international comedy and the the relationship between our courts and the courts of other countries. 00:43:21.760 --> 00:43:26.559 And in when when that balance tips, we're gonna send it to the other country.

00:43:26.639 --> 00:43:28.719 And in this case, that's exactly what happened. 00:43:29.039 --> 00:43:39.519 The court determined the New Zealand system for providing a remedy in this situation is a more weighty interest than the more distant United States connection to the case. 00:43:39.840 --> 00:43:41.760 Well, and Mark, so help me out here. 00:43:42.000 --> 00:43:46.079 Number one, the adequacy that we were just talking about, that's a gate, right? 00:43:46.159 --> 00:43:46.719 Not a factor. 00:43:47.039 --> 00:43:48.559 I would say that's a gateway. 00:43:48.719 --> 00:43:49.519 That is yes or no. 00:43:49.599 --> 00:43:56.400 And then if you if you get to yes, then the district court is allowed to consider the factors under foreign nonconvenience. 00:43:56.559 --> 00:43:57.440 But exactly that's it. 00:43:57.599 --> 00:43:57.760 Exactly. 00:44:00.159 --> 00:44:03.440 Considering, well, yes, it is a forum, but it's like not a very nice forum. 00:44:03.599 --> 00:44:04.960 You've got there's a lot of headaches. 00:44:05.360 --> 00:44:06.480 We like our discovery better. 00:44:06.880 --> 00:44:07.119 Exactly. 00:44:07.199 --> 00:44:08.079 You're not supposed to do that. 00:44:08.480 --> 00:44:14.719 And then uh what what's not clear to me is why is this discussion of this the causes of action relevant? 00:44:14.880 --> 00:44:16.800 I mean, those are isn't that a merits question? 00:44:16.880 --> 00:44:20.559 I mean, she's got state law causes of action, which may or may not. 00:44:20.639 --> 00:44:24.320 I mean, who knows if state law causes of action apply extraterritorially. 00:44:24.480 --> 00:44:26.079 That's not entirely clear, you know. 00:44:26.239 --> 00:44:29.280 And of course, hypothetically, she could bring a New Zealand. 00:44:29.519 --> 00:44:34.639 I mean, this there's choice of law issues here too, which is funny that the choice of law question is not really discussed too much. 00:44:34.880 --> 00:44:34.960 Right. 00:44:35.119 --> 00:44:36.239 And it is vulking in the background. 00:44:36.480 --> 00:44:43.039 Right, it is, and I think that that's maybe part of what's going on here, the seventh circuit, because the choice of law analysis is not discretionary. 00:44:43.199 --> 00:44:45.119 I mean, the choice of law just is what it is. 00:44:45.360 --> 00:44:57.920 And I think the Seventh Circuit is imagining a scenario where if it reversed on foreign non-convenience grounds and forced the district court to hear the case, the district court might end up applying New Zealand law. 00:44:58.159 --> 00:44:59.760 I think it would be hard not to apply New Zealand. 00:44:59.840 --> 00:45:03.519 I agree, but like it's hard for me to see how giving it where everything happened. 00:45:04.159 --> 00:45:04.400 Exactly. 00:45:04.480 --> 00:45:05.519 It's where everything happened. 00:45:05.679 --> 00:45:12.159 And so maybe so the state law claims, I mean, there's just no hard for me to imagine the state law claims would ever proceed. 00:45:12.320 --> 00:45:15.519 And then you've got these federal causes of action. 00:45:15.760 --> 00:45:18.480 It's not clear if they apply extraterritorially. 00:45:18.719 --> 00:45:24.159 Even if they do, do they apply under a choice of law framework, which is a separate question, right? 00:45:24.239 --> 00:45:33.519 They might potentially apply, but if you don't choose US law and you choose New Zealand law, then they don't apply for choice of law reasons, even beyond what the statute means. 00:45:33.760 --> 00:45:36.480 I mean, those are some weighty questions. 00:45:36.880 --> 00:45:38.880 Those are very, very, very difficult questions. 00:45:39.039 --> 00:45:50.159 And I think part of what is going on here is the Seventh Circuit is thinking, well, if a court's going to be applying New Zealand law, it makes a lot more sense for that to be a New Zealand court than a poor federal judge in the Western District of Wisconsin. 00:45:50.559 --> 00:46:03.920 And you could see, you see, an interest where the Seventh Circuit maybe and the district court may be willing to dive into that if there was a connection to the United States apparent on the case, other than the fact of the defendant's residence after the fact. 00:46:04.320 --> 00:46:07.280 He doesn't, I think they made that point too in the oral argument. 00:46:07.360 --> 00:46:09.119 He actually doesn't even reside here now. 00:46:09.199 --> 00:46:11.280 He simply owns property in Wisconsin. 00:46:11.360 --> 00:46:15.280 That's really his only his only connection to the forum. 00:46:15.599 --> 00:46:17.199 So that's significant. 00:46:17.360 --> 00:46:19.039 I I do think that's significant. 00:46:19.280 --> 00:46:21.280 The fact that he's not actually residing there. 00:46:21.360 --> 00:46:23.440 That I mean that all of that matters, right? 00:46:23.519 --> 00:46:24.800 It matters where the witnesses are. 00:46:25.280 --> 00:46:27.199 Well, and that may lead to a different result. 00:46:27.280 --> 00:46:36.239 I think one thing that's really interesting to me about this case is that the plaintiff also sued Gaiman's ex-wife, perhaps soon-to-be ex-wife on the soon-to-be-ex-wife. 00:46:36.559 --> 00:46:48.159 And that suit is ended up being refiled in a Massachusetts federal court and is now was dismissed also for forum non-convenience, is now an appeal to the First Circuit. 00:46:48.320 --> 00:46:53.760 I would be surprised if they came out a different way on the forum non-convenience analysis. 00:46:54.079 --> 00:47:02.079 But one factor that may persuade them to do that is that I believe Soon to Be Ex-wife Amanda Palmer, I I think she does live in Massachusetts still. 00:47:02.480 --> 00:47:06.400 So that may that may tip, we would we could see if that is enough to tip the scales. 00:47:06.880 --> 00:47:17.119 Well, and especially if depending on what's what claims were brought in Massachusetts, if they were all state law claims, then you've got the same problem where the First Circuit is

thinking about the case. 00:47:17.280 --> 00:47:23.679 So I think it's it's definitely the TVPA claims, obviously, but then I would assume that they were probably Massachusetts state law claims as well. 00:47:24.000 --> 00:47:24.079 Yeah. 00:47:24.159 --> 00:47:27.920 And so then a lot of it comes down to would the TVPA actually apply here? 00:47:28.079 --> 00:47:50.559 If it wouldn't, what in the world is this doing in federal court and why exactly one thing I I want to know too about the just the analysis once we get past the gatekeeping of what's the right form here, both publicly and privately, is the idea of how would you litigate this case in in the federal court where most outside of the actual parties, most of the witnesses are going to be in New Zealand. 00:47:50.719 --> 00:47:58.239 And New Zealand doesn't have a like we do in the United States, a system to allow the discovery for an out-of-country case. 00:47:58.400 --> 00:48:00.960 You can't go into New Zealand and essentially localize your dispute. 00:48:01.679 --> 00:48:02.960 You can't domesticate a subpoena? 00:48:03.280 --> 00:48:03.360 Yeah. 00:48:03.760 --> 00:48:08.639 Oh that is that is the esoterica that listeners are looking for. 00:48:08.800 --> 00:48:09.280 Yeah, there you go. 00:48:10.159 --> 00:48:14.719 When you're at Pub Trium Unites and someone asks, true or false, you can domesticate a subpoena in New Zealand. 00:48:14.880 --> 00:48:15.119 Exactly. 00:48:15.280 --> 00:48:16.000 You guys are ready to go. 00:48:16.320 --> 00:48:18.320 All they have in New Zealand is wild subpoenas. 00:48:21.199 --> 00:48:22.079 Run around New Zealand. 00:48:22.400 --> 00:48:22.800 Oh Lord. 00:48:22.960 --> 00:48:32.480 I mean, that creates a significant hamper on on obviously litigating the case, at least as litigating it as we we consider litigating a case through American eyes. 00:48:32.880 --> 00:48:43.920 There's an extra layer here, which I think is really interesting, which is much of what we are talking about right now is the content of New Zealand law, which was presented to the court in the form of experts. 00:48:44.400 --> 00:48:44.800 Good point. 00:48:44.960 --> 00:48:45.119 Right. 00:48:45.519 --> 00:48:57.280 So this isn't this isn't the US attorneys who are citing New Zealand statutes and case law, but experts who are opining on the content of New Zealand law, and the U.S. 00:48:57.360 --> 00:49:00.239 judges are looking at that and trying to make sense of it. 00:49:00.320 --> 00:49:10.320 And it does, in this instance, it seemed like it was pretty straightforward because even the plaintiff's expert conceded a lot of the most significant points, so there wasn't a lot of confusion. 00:49:10.719 --> 00:49:21.440 I've seen some cases where it's other countries' law and the experts are saying completely opposite things, and this poor judge is like, how in the world vice versa neural and what exact law says on the images. 00:49:23.920 --> 00:49:26.559 And that suggests to you that this is not an appropriate forum. 00:49:26.639 --> 00:49:27.519 We're not able to just do that. 00:49:27.840 --> 00:49:36.559 Although you can't, one of the things you can read from it too is that the plaintiff, even on this preliminary motion to dismiss, has gone out and hired experts to help bolster a position. 00:49:36.639 --> 00:49:43.039 That shows that is a hint to how damaging they think New Zealand law will be if it if it applies or for no New Zealand forum. 00:49:43.519 --> 00:49:45.519 Or how how powerful the TVPA is. 00:49:46.480 --> 00:49:46.719 Exactly. 00:49:46.880 --> 00:49:47.280 Yeah, exactly. 00:49:47.760 --> 00:50:04.880 It's a very well and and I know that I know there's a lot to be said about the factors, Mark, but one thing I do think is worth mentioning to our our listeners because I think it putting aside the fact that Gaiman doesn't live in Wit doesn't actually reside in Wisconsin anymore, the court specifically says that where a foreign plaintiff is suing a U.S. 00:50:05.039 --> 00:50:13.199 defendant, the fact that the defendant lives in the forum is of minimal weight, which is not necessarily intuitive that that would be the case. 00:50:13.360 --> 00:50:15.440 I do think that's that's very significant. 00:50:15.679 --> 00:50:20.800 That's gonna be something that will go in a lot of defendants' motion for forum, not convenience briefs in the future. 00:50:21.199 --> 00:50:26.880 And and the court hits up the flip, too, that when a plaintiff a plaintiff's choice of forum is a factor that needs to be considered. 00:50:27.360 --> 00:50:37.440 The plaintiff's a dis usually the decider of of where a case is going to be heard, but that drops considerably low when neither the plaintiff nor the defendant are actually living in that forum. 00:50:37.519 --> 00:50:40.159 And then it becomes, I think the court said tiebreaker at best. 00:50:40.320 --> 00:50:40.480 Right. 00:50:40.880 --> 00:50:44.639 You know, again, we'll will be appearing in many briefs in the future when this comes up. 00:50:44.880 --> 00:50:44.960 Yeah. 00:50:45.119 --> 00:50:53.360 And I do it is, of course, essential, I think, that Gaiman has conceded that the New Zealand courts would have jurisdiction over him. 00:50:53.599 --> 00:50:55.280 I don't think you can bring this motion without making it. 00:50:55.679 --> 00:50:56.960 You have to make that concession. 00:50:57.119 --> 00:50:58.400 And so that is that is significant. 00:50:58.480 --> 00:51:05.119 And indeed, this is a situation where we ordinarily represent defendants, but this is something I think for plaintiffs' lawyers to think about. 00:51:05.360 --> 00:51:18.239 It will sometimes it makes sense to file in federal court where you know you have personal jurisdiction, if only to coerce a concession that in the other jurisdiction you'll get personal jurisdiction. 00:51:18.400 --> 00:51:26.480 Because if she had not sued in the Western District of Wisconsin to begin with, I think you've got

pretty good odds to game in when she sues in New Zealand. 00:51:26.559 --> 00:51:27.360 What are you talking about? 00:51:27.519 --> 00:51:28.639 I don't know about Zealand anymore. 00:51:29.360 --> 00:51:30.880 I think he's in the island of Sky or something. 00:51:31.119 --> 00:51:31.280 Exactly. 00:51:32.239 --> 00:51:32.559 Exactly. 00:51:32.639 --> 00:51:34.559 So that I do think that that's significant. 00:51:34.800 --> 00:51:41.039 Well, that that uh in some ways, I think, speaks to the the adequacy of the alternative forum, right? 00:51:41.440 --> 00:51:44.239 How quickly we see defendants consenting to suit there. 00:51:44.320 --> 00:51:44.800 Oh, yeah, that's fine. 00:51:44.960 --> 00:51:45.679 Zoom you in New Zealand. 00:51:45.840 --> 00:51:46.079 Yeah, yeah. 00:51:46.239 --> 00:51:46.480 No problem. 00:51:48.960 --> 00:51:49.599 Beautiful this time. 00:51:49.840 --> 00:51:56.239 There's a lot of a lot of analysis under like right under the surface as far as the strategy and the moving pieces of this case, and that that's definitely one of them. 00:51:56.480 --> 00:52:01.039 So, does anyone want to comment on how they feel that this affected good omens season three? 00:52:03.039 --> 00:52:06.880 My opinion is that that is now completely separate from anything dealing with Mr. 00:52:06.960 --> 00:52:08.559 Gaiman, and we'll move forward. 00:52:09.199 --> 00:52:15.760 Oh, one thing, one thing we should mention is again, this is an issue decided on an abusive discretion standard. 00:52:15.920 --> 00:52:19.679 So that does affect how courts are going to use this opinion going forward. 00:52:19.840 --> 00:52:28.320 This opinion doesn't, it does, it does not at all suggest that the district court was obligated to dismiss under forum non-convenience, even in this situation. 00:52:28.639 --> 00:52:35.840 So there are some principles like what we mentioned before about the significance of a foreign plaintiff suing a U.S. 00:52:35.920 --> 00:52:37.519 defendant of having minimal weight. 00:52:37.599 --> 00:52:40.719 That's that's a legal proposition that courts are obligated to apply. 00:52:41.039 --> 00:52:50.480 But the specific balancing of the factors here, I mean, that's going to be of, I think, limited significance going forward because these are always going to be discretionary to the district court. 00:52:50.880 --> 00:52:57.679 I think the the the upshot of that is that if the district court had come out the other way, it would very likely could have been affirmed, maybe would have been affirmed. 00:52:58.079 --> 00:52:58.559 Yes, exactly. 00:52:58.880 --> 00:52:59.760 It's just a matter of description. 00:53:00.079 --> 00:53:00.320 Exactly. 00:53:00.400 --> 00:53:09.519 So the real the real key here going forward is one, the first gate piece of the Forum 9 convenience analysis, uh, pretty easy to overcome. 00:53:09.679 --> 00:53:16.960 And indeed, I mean the the features of the New Zealand system that were con that were contrary, that were disadvantageous to the plaintiff were significant here. 00:53:17.119 --> 00:53:23.679 And the fact that those did not slow the Seventh Circuit down, I mean, that goes a long way to establishing that that threshold is easy to overcome. 00:53:24.000 --> 00:53:39.199 Well, you you can almost see that these are almost the opposite with the the the federal act is about a strongest statement against sexual assault, sexual or sex trafficking versus the only thing you can possibly get is mental health counseling or maybe an outside shot of punitive damage. 00:53:39.360 --> 00:53:43.039 Those are maybe not the opposite polls on the spectrum, but they're definitely on the opposite. 00:53:43.599 --> 00:53:43.840 Exactly. 00:53:43.920 --> 00:53:46.639 And the fact that the court just says, yeah, that's very quickly. 00:53:48.320 --> 00:53:56.079 Like that that goes a long way to saying effectively forum non-convenience is is very often going to turn on the balancing of the factors. 00:53:56.320 --> 00:54:10.400 And and I I did think it was interesting that much of the court's discussion was about policy, the the interests of the relevant sovereigns here, not sort of the detailed questions of discovery, like how you know where do people live? 00:54:10.559 --> 00:54:12.960 Is this a document-heavy case, right? 00:54:13.119 --> 00:54:17.039 Which is not it's not uncommon that that's what you see in a foreign night convenience analysis. 00:54:17.119 --> 00:54:19.679 I mean, there's questions about like where are the servers? 00:54:19.760 --> 00:54:20.239 Yeah, right. 00:54:20.559 --> 00:54:21.599 Where are the papers? 00:54:21.920 --> 00:54:27.280 You know, we can move people, but can we, you know, how how difficult is it going to be to move physical evidence and that sort of thing? 00:54:27.440 --> 00:54:34.960 So that I think that that's interesting, but for folks who practice in international litigation, very important decision. 00:54:35.039 --> 00:54:37.039 I think lots of strategic considerations here. 00:54:37.199 --> 00:54:38.880 So thank you for listening again. 00:54:38.960 --> 00:54:44.400 This is the Seven Circuit Roundup Podcast from the Appeals and Critical Motions Group at Barnes and Thornburg. 00:54:44.559 --> 00:54:47.599 And uh this is our episode for August 2026. 00:54:47.760 --> 00:54:51.760 Please join us next month in September for some more Seven Circuit cases.